Dealing with the Difficult Adversary

By Frederick Alimonti

At some point in litigation, often from the beginning, relations with an adversary become strained. Often, it starts with a discovery dispute or even a simple scheduling issue. Then it escalates. Eventually, the litigation devolves into a frustrating acrimonious standstill. There will be no courtesies, no extensions; there will not even be any phone calls among adversaries. All communications will be on the record and in writing. Absent some dramatic epiphany on the part of at least one adversary, nothing in this case will ever be easy again.

Before we delve into how to best deal with the difficult adversary, let’s first take a look at the archetypes.

The Bully. Nearly all difficult adversaries exhibit bullying behavior. This lawyer is rude, ruthless, and unhappy unless he controls everything. From day one, the Bully has told you what was going to happen and threatened you and your client with motions, sanctions, and more. Depositions with the Bully are torture. You cannot get a question in without a speaking objection. If he is questioning your witness, the Bully ruffles at every objection and asks every question of your witness with an heir of arrogance, indignation, and contempt.

Mr. Negativo. Everything with Mr. Negativo is a battle. No matter how mutually beneficial your suggestion might be, he can never seem to agree.

Les Misérables. The Misérable adversary hates his job and perhaps much else about his life. This manifests itself into a host of unkind and uncooperative behaviors.

The Abused. The Abused adversary works for lawyers perhaps even more unhappy than he. His boss, or bosses, overload him with work and treat him like an expendable part. As a product of an abusive environment, he himself is destined to be an abuser. Likely, this will manifest itself in his dealings with opposing counsel.

The Poorly Raised. Unlike the abused lawyer, the Poorly Raised lawyer is not the product of a hostile work environment. In fact, the law firm with which this lawyer is associated may be an absolutely delightful—perhaps even lucrative—place to work. However, the culture of this firm—”fight, fight, fight”; “yield no ground”; “scorch the earth”; and “take no prisoners”—has corrupted this lawyer much like a bigoted parent might love a child but ultimately horribly mislead it.

Mr. Two-Hats. If you were to meet Mr. Two-Hats at a barbecue or a local pub, odds are you would find him instantly likable. Stick Mr. Two-Hats behind his desk, at a deposition, or in a courtroom, though, and he mutates into a nightmare adversary.

The Sleeper. The Sleeper is a confounding adversary. There seems to be little or nothing that he wants to do to advance the defense or prosecution of his case. He serves no discovery—or if he does, it is clearly the same cookie-cutter discovery used in every case (often down to the name of the parties from a prior litigation).

The Transient. Ever have a case go on for years and seldom speak twice to the same lawyer? This is the domain of the Transient. The Transient approaches his case much like the Sleeper. He does little with it because he knows he will not be around it for much longer.

The Unprepared. This lawyer has no idea what the case is about and only some vague idea of what the law is. This character seeks to hide his incompetence under a mask of overzealous advocacy. Because he does not know enough to advance his case, his next best alternative is to obstruct yours.

Mr. Motion. This adversary does not know how to pick up a phone, much less write a letter. Rather than call you and request an extension of a minor deadline or solicit your agreement to a stipulation, you fall prey to a seemingly endless stream of motions and applications over things that could be resolved by a simple phone call.

In dealing with any of these types, preparation is one of your greatest allies. First, prepare yourself psychologically for your next encounter. Have a plan, and do your best to stick with it. Decide that you will not take the bait and engage in tactics similar to that of your adversary. Second, be prepared with the law and the facts that apply to your case generally and to the specific proceeding at which you will next encounter your adversary. Cold, hard facts and law can often put a quick end to a dispute.

Any pilot, whether trained in the military or privately, has the mantra, “First, fly the airplane” rung into his head. Despite the various distractions that might come up in the course of a flight, a pilot’s foremost duty is to maintain controlled flight of the aircraft. Communicating with air traffic control, determining the precise location, and working on problems and malfunctions with the aircraft all take a back seat to its safe operation. Accident records are replete with examples of pilots killing themselves and their passengers by fixating on a relatively insignificant problem rather than simply flying the airplane.

A litigator’s difficult adversary is just such a minor malfunction. If you allow his tactics and personality to distract you, you may end up crashing the whole litigation. However, unlike my aviation analogy, the malfunctioning adversary may very well self-destruct or resolve over time with no harm to you and your passenger/client. If you ignore him, or, more accurately, ignore his tactics, he may just go away.

Also, consider that the court is your audience. Every letter you write to your adversary is a potential exhibit before the court. Every word you utter is a potential quotation in an affidavit. U.S. District Judge (Texas) Nancy Atlas provides this useful and practical perspective:

I tell lawyers that are being unreasonable or unreliable, especially if not an isolated event, that this conduct will hurt you in the long run. You are using valuable “chits.” The court’s respect for an attorney and her credibility are valuable commodities: once lost, almost impossible to regain. A single serious misrepresentation—or several examples of poor judgment—will destroy the court’s faith in the attorney. Thereafter, when the judge must rely on an attorney’s rendition of events in making a ruling, the judge may well decide against the attorney who is not trusted or respected.

Nearly all pretrial, discovery, and scheduling matters are areas in which the court has significant leeway and discretion. When the time comes for an application to the court, your reputation and track record with the judge can be valuable commodities. Judge Atlas advises, “When a judge exercises discretion in pretrial matters, he often rules for the side that has been the most reasonable and forthcoming in discovery.”

If you treat every communication in litigation as if it was before the judge, you will never reduce yourself to the hostile tactics of your adversary.

If you keep your composure and use the law, the facts, and the judge to your advantage, there is a very good chance that your adversary will ultimately cease and desist. Your refusal to engage in the same improper tactics will deflate him. You will not have not lost your temper; rather, coolly absorbed the occasional meaningless blow. You will have invoked judicial assistance and forced compliance with discovery and something resembling proper conduct at depositions. Perhaps your adversary will even endure some harsh words from the judge. Lo and behold, your difficult adversary may even throw in the towel when he sees he gets nowhere with his tactics. You will have shown him the futility of his ways.

Fellow counsel and clients can distinguish good lawyering from bad, professional conduct from unprofessional. Former Section of Litigation Chair Scott Atlas, from the Houston, Texas, office of Weil, Gotshal & Manges LLP, offers the following story for our consideration:

Many years ago as a young lawyer, I had to take five corporate employees’ depositions in five days. On the first day, it quickly (and surprisingly) became evident that opposing counsel’s objective was to heap personal abuse on me in an effort to disrupt my deposition strategy. For example, a straightforward, perfectly legitimate question from me elicited something like the following response: “I am shocked that someone who has been practicing for __ years would ask such a stupid question.” This calculated abuse continued the entire day. On each of the following four days, each new witness was defended by a different partner from the same law firm, with each employing the same strategy. Even though I recognized the strategy as the game that it was and refused to “take the bait” and turn the deposition into a reciprocal slug fest, I found it very tiring. I occasionally had to stand up and walk around the room just to stretch and clear my head. Fortunately, I was able to stay focused and obtain the information I needed. The opposition must have thought I did something right. Several months later, one of the lawyers who had defended one of the deponents called to hire me as a fee expert in an unrelated case. He said that opposing counsel in that case was known for obstreperous behavior and that they wanted someone who would not be sidetracked by his unpleasant, personal character attacks during depositions. Having seen my reaction to similar attacks as I took the deposition of their client’s employees, they thought I was just what they needed!

Litigation is by definition an adversarial process. However, “adversarial” does not equate to “acrimonious.” If you maintain high standards of courtesy and professionalism, it will serve the interests of your client and ultimately be recognized and appreciated by the court. You will also likely find at the end of the day that you respect yourself and have no regrets at staking out and holding the high ground.

Keywords: Trial procedure, opposing counsel

Frederick Alimonti practices with the Alimonti Law Offices, PC, in White Plains, New York.

This article was excerpted from a longer one that appeared in LITIGATION, Volume 35, Number 1, Fall 2008.